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Saturday, April 28, 2018

Monkey Makes Monkeys out of PETA at Ninth Circuit

A Crested Macaque named Naruto was just doing his thing on the island of Sulawesi, Indonesia in 2011 when he came across an unattended camera. Though he was only six or seven years old at the time, he decided to do his best Millenial impression and takes some selfies.

Shortly thereafter, the wildlife photographer who left the camera unattended, David Slater, retrieved his camera. While reviewing the contents, he found the selfies. Three years later, he published the selfies in a self-published book printed through the Blurb website. The book had a copyright notice stating that the copyright was held by Slater and Wildlife Personalities.

People for the Ethical Treatment of Animals ("PETA") and an individual sued on behalf of Naruto. Through PETA, Naruto claimed that he held the copyright in the images he took, and Slater violated his copyright by selling a book with his selfies in it.

The United States District Court for the Northern District of California, Judge Orrick presiding, held that the Copyright Act does not confer standing upon animals like Naruto, and dismissed the case. Thankfully, this dismissal avoided raising even more complex questions. For example, if Naruto was found to own the copyright, did he also have rights under the Equal Protection Clause of the Fourteenth Amendment that were violated by the Copyright Act's scheme that granted protection for 70 years after the death of the author. As Macaques have an expected lifespan of 20 years, Macaques cannot enjoy the same copyright term as a similarly aged human -- giving rise to a potential Equal Protection violation.

Judge Orrick found that "Naruto is not an 'author' within the meaning of the Copyright Act and dismissed the case. Naruto appealed this dismissal to the Ninth Circuit Court of Appeals. While the appeal was pending, PETA and Slater settled the case, with Slater agreeing to donate 25 percent of future revenue from the photos to groups that protect crested macaques in Indonesia. Although PETA and Slater both asked the Court to dismiss the appeal, the Court refused.

On April 23, 2018, the Ninth Circuit handed down its opinion. The Court held that "the monkey's claim has standing under Article III of the United States Constitution. Nonetheless, [they] conclude[d] that this monkey -- and all animals, since they are not human -- lacks statutory standing under the Copyright Act." In other words, if Congress had phrased the Copyright Act as saying "Copyright protection subsists, in accordance with this title, in original works of authorship by any mammal fixed in any tangible medium of expression", Naruto would have been able to proceed to a copyright infringement trial on the merits.

The Ninth Circuit first focused on the concept of "Next Friend" -- a doctrine that allows somebody to run litigation on behalf of somebody not able to manage their own litigation. PETA initially brought the suit as Naruto's "Next Friend". PETA realized at the oral argument phase that it would almost certainly lose the case. Rather than take the loss, they agreed to settle for pennies on the dollar. The Ninth Circuit went out of its way to slap down PETA: "We feel compelled to note that PETA's deficiencies [as Naruto's Next Friend] go far beyond its failure to plead a significant relationship with Naruto. Indeed, if any such relationship exists, PETA appears to have failed to live up to the title of 'friend.'" PETA offered to settle the case directly with Slater, leaving Naruto "not a party to the settlement".

The Ninth Circuit wasn't done yet: "now, in the wake of PETA's proposed dismissal, Naruto is left without an advocate, his supposed 'friend' having abandoned Naruto's substantive claims in what appears to be an effort to prevent th4 publication off a decision adverse to PETA's institutional interests. Were he capable of recognizing this abandonment, we wonder whether Naruto might initiate an action for breach of confidential relationship against his (former) next friend, PETA, for its failure to pursue his interests before its own."

It is unclear to the reader whether the Ninth Circuit was actually inviting somebody to sue PETA as Naruto's new "Next Friend", but given the holding that Naruto had standing to sue Slater, it may only be a matter of time before PETA is sued in the manner that the Ninth Circuit described. Ironically, such a suit would vindicate one of PETA's goals in the original suit: A ruling where an animal recovers damages from a human or human organization. The Court did recognize that express statutory permission is required for "Next Friend" standing, and that was not provided in the Copyright Act. The hurdle to be cleared if Naruto is to bring suit against PETA is whether a suit in federal or state court would allow somebody Next Friend standing (although there is a question about whether PETA could remove a case filed in state court to federal court on the grounds that Naruto is not a resident of the same state as PETA). Of course, once suit is commenced, Federal Rule of Civil Procedure 17 obligates the court to consider whether he is adequately protected, even where there is no 'next friend' -- so somebody bringing suit against PETA on Naruto's behalf may find themselves kicked out of court as Naruto's next friend while leaving Naruto's claims against PETA to be adjudicated.

The Court then noted a crucial rule about "Next Friend" standing: "lack of a next friend does not destroy [Naruto's] standing to sue, as having a 'case or controversy' under Article III of the Constitution." The Court went on to substantively analyze whether Naruto qualifies as an author of a copyrighted work.

The Court makes quick work of this analysis: "if an Act of Congress plainly states that animals have statutory standing, then animals have statutory standing. If the statute does not so plainly state, then animals do not have statutory standing. The Copyright Act does not expressly authorize animals to file copyright infringement suits under the statute."

As a final slap to PETA -- perhaps in response to the footnote about PETA failing to act as Naruto's "friend" -- the Court ordered PETA to pay the photographer's attorneys' fees on appeal.

This case may appear more comedy than precedent (and to be fair, I had fun writing this article), but it does establish an important rule about copyright as well as animal rights.

Until this case, the only works in which copyright can never arise were original United States Government works. After this case, photographs taken by animals are not enforceable (even if the animal were to hold the copyright). With the miniaturization of imaging technology, we have seen a significant rise in animal-borne cameras, whether for law enforcement and military use or for fun with a Go-Pro. While there is a weak argument that the creative decision to mount the camera created some copyright rights in the human, this case seems to indicate that images taken by an animal-mounted camera are likely to fall outside of the realm of enforceable copyrights -- the only difference between the hypothetical case and Naruto's case is that Naruto actuated the shutter. It seems unlikely that a court would find an automatically actuated shutter on a dog-mounted camera as giving rise to a copyright more enforceable than one where the animal actuates the shutter.

The next logical case to bring after this one is one challenging whether images automatically taken by machines (such as the satellite imagery used in Google Earth or dash-cam video from a car) are subject to copyright protection. While Congress has set copyright terms to last so long that no work created today will ever reach public domain status in my lifetime, animal-created and AI/machine-created images may help fill some of the void that now exists for free-to-use works. Of course, the key word is "may". Don't use any images that "may" be free without direct legal advice saying that they are, in fact, free.